05-000506 Benjamin Torres vs. Manpower, Inc. Status: Closed Recommended Order on Monday, June 6, 2005.

Summary: Respondent had legitimate reason to terminate Petitioner`s employment due to inappropriate sexual conduct.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BENJAMIN TORRES, )

)

Petitioner, )

)

vs. ) Case No. 05 - 0506

)

MANPOWER, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was cond ucted in this case on April 7,

2005, in Pensacola, Florida, before Suzanne F. Hood,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Debra Dawn Cooper, Esquire

309 West Gregory Stree t

Pensacola, Florida 32502

For Respondent: Jane M. Rolling, Esquire

5301 North Ironwood Road

Post Office Box 2053

Milwaukee, Wisconsin 53217

STATEMENT OF THE ISSU E

The issue is whether Respondent committed an unlawful

employment practice contrary to Section 760.10, Florida

Statutes, by discriminating against Petitioner based on his

gender.

PRELIMINARY STATEMENT

On December 15, 2003, Petitioner Benjamin Torres

(Pe titioner) filed an Amended Charge of Discrimination against

Respondent Manpower, Inc. (Respondent). The amended charge

alleged that Respondent had discriminated against him by

terminating his employment based on his gender. On January 4,

2005, the Florid a Commission on Human Relations (FCHR) issued a

Determination: No Cause.

On February 8, 2005, Petitioner filed a Petition for

Relief, requesting an administrative hearing. On February 10,

2005, FCHR referred the case to the Division of Administrative

He arings.

A Notice of Hearing dated February 25, 2005, scheduled the

hearing for April 7, 2005.

On March 11, 2005, Respondent's staff attorney, who is

licensed to practice law in Wisconsin, requested a determination

that she was qualified to represent th e interests of Respondent

at the hearing. An Order dated March 14, 2005, granted the

request.

During the hearing, Petitioner testified on his own behalf.

Petitioner presented no exhibits for admission into evidence.

Respondent presented the testimony of four witnesses.

Respondent offered six exhibits that were admitted as evidence.

The Transcript of the proceeding was filed on May 5, 2005.

Subsequently, the parties filed Proposed Recommended Orders.

All citations hereinafter shall be to Florida St atutes

(2003) unless otherwise specified.

FINDINGS OF FACT

1. Respondent is a staffing company that provides

temporary employees to a variety of customers/employers.

Respondent performs workforce management for its customers,

including hiring personnel, providing new - employee orientation,

and conducting ongoing training after the initial hire.

2 . Respondent provides its employees with harassment - free

workplace training as part of the initial orientation.

Thereafter, Respondent provides the harassmen t - free workplace

training on an annual basis and more frequently at the request

of its customers.

3 . Petitioner is a white male who worked as a temporary

employee for Respondent on two occasions: from May 17, 1993,

through July 27, 1996, and from June 30, 1997, through July 28,

2003. On both occasions, Respondent assigned Petitioner to

perform maintenance work at the Island House Hotel in Orange

Beach, Alabama.

4 . Petitioner was a maintenance technician at the Island

House Hotel until Respondent pr omoted him to the position of

Assistant Supervisor of Maintenance in 1998. Respondent

promoted Petitioner to the management position of Chief Engineer

in 1999.

5 . As Chief Engineer, Petitioner supervised five or six

maintenance technicians. Petitioner received a salary but often

worked more than a 40 - hour week. For instance, Petitioner would

stay at the hotel during hurricanes instead of going home to be

with his family.

6 . At all times relevant here, Petitioner was aware of

Respondent's written "H arassment - Free Workplace Policy." The

policy defines sexual harassment as "unwelcome conduct of a

sexual nature where an employee feels compelled to comply with

the harassment as part of job betterment, or where the

harassment interferes with an employee' s work creating an

intimidating or hostile work environment." The policy lists

examples of sexual harassment, including unwelcome physical

contact, request for sexual favors, and/or displays of a sexual

nature.

7 . Respondent's Harassment - Free Workplace Policy goes on

to discuss other types of discriminatory conduct. Specifically,

the policy prohibits discrimination , such as intimidation or

ridicule based on gender, race, color, national origin, sexual

orientation, pregnancy, age, religion, disability, veteran

status, or any other basis that creates an offensive work

environment, or which results in an unfavorable job action. The

policy lists verbal or written jokes or offensive comments based

on race, sex, etc., as examples of discriminatory conduct.

8 . Respondent's Harassment - Free Workplace Policy advises

employees, whether a victim or a witness, to report all

incidents of discrimination or harassment. Respondent instructs

its employees to report such complaints to their manager, their

local office s taffing specialist, and/or Respondent's corporate

office, using a toll - free employee hot line.

9 . Petitioner had a good professional and personal

relationship with Respondent's employees who were assigned

management positions at the Island House Hotel. Specifically,

Petitioner was friends with the following employees: (a)

Barbara Walters, General Manager; (b) Glenn Johnson, Director of

Operations; and (c) Margaret Lathan, Director of Housekeeping.

10 . Petitioner and Ms. Walters occasionally shared off -

color jokes with each other. Sometimes they laughed about jokes

with sexual connotations that one of them had copied from the

Internet. On at least one occasion, Ms. Walters and Petitioner

discussed hotel guests who were wearing bathing suits at the

pool. There is no evidence that Petitioner was ever offended by

the jokes; he never complained to Respondent about the jokes.

11 . Ms. Walters personally was not offended by the jokes.

In time, however, she became concerned that Petitioner's jokes

and comments to employees other than herself were no longer

appropriate in the workplace. Eventually, Ms. Walters began to

verbally counsel Petitioner to clean up his language and to be

careful of his remarks to other employees because they might

consider th em offensive.

12 . Petitioner and Ms. Latham also enjoyed sharing jokes

of a sexual nature with each other. On one occasion, Ms. Latham

gave Petitioner a T - shirt when she returned from vacation. The

back of the shirt had pictures of ladies ’ butts weari ng bikinis.

There is no evidence that Petitioner found the shirt offensive;

he never complained to Respondent or anyone else about the

T - shirt.

13 . On or about June 23, 2001, Ms. Walters wrote a note to

Petitioner. Ms. Walters requested that Ms. McDow ell place the

note in Petitioner's personnel file. The note stated as

follows:

After our conversation on Wednesday, I

thought we had cleared up my concerns with

you. Today I discover that your "blond"

lady that does awnings was in your office

yesterday a nd that you allowed her to

accompany you to repair the washer in the

laundry.

This is totally unacceptable and violates

Hotel policy and safety issues. I do not

expect you as a manager to have outside

vendors in areas that they are not here to

inspect, study, or to prepare estimates for.

I will not discuss this any further with

you.

14 . Ms. Walters would have written the above - referenced

note if Petitioner had invited an unauthorized male to accompany

him into a secure area. However, Ms. Walters was especially

concerned because the incident involved a female.

15 . On at leas t two occasions, Ms. Walters made special

requests for Respondent to conduct a class to review

Respondent's harassment policy with her management team. She

made these requests be cause her management team consisted of

members who were of various ages. Ms. Walters wanted to make

sure that the management team was aware that times had changed,

and that conduct, which had been acceptable years ago, was no

longer acceptable in today's workplace.

16 . At the request of Ms. Walters, Respondent's staffing

specialist, Martina McDowell, conducted a class on Respondent's

harassment policy at the Island House Hotel on January 31, 2002.

Petitioner, Ms. Walters, and Ms. Latham attended the cl ass.

17 . During the January 2003 class, Petitioner received a

copy of Respondent's Harassment - Free Workplace Policy. He

signed a statement acknowledging that he had read and understood

the policy, including the procedure to report violations.

18 . On February 14, 2002, Petitioner signed a copy of

Respondent's "New Employee Orientation Guidelines: Policy &

Procedures." This document includes Respondent's discrimination

and harassment policies, which Petitioner initialed.

Ms. McDowell signed the docu ment under Petitioner's signature.

19 . In the last year of Petitioner's employment at the

Island House Hotel, Ms. Walters realized Petitioner was under

stress in his personal life. She also noticed a change in his

behavior at work. Ms. Walters felt th at Petitioner's jokes and

other attempts to be humorous became more intense.

20 . Ms. Walters was so concerned that she requested

Ms. McDowell to counsel Petitioner on more than one occasion.

During the counseling sessions, Ms. McDowell advised Petition er

that off - color jokes were not accepted in the workplace.

Ms. McDowell also told Petitioner that flirting with female

co - workers was inappropriate and would be considered as sexual

harassment under Respondent's policy.

21 . Respondent does not provid e the Island House Hotel

with employees to perform housekeeping duties. Island House

Hotel contracts with a company by the name of TIDY for

housekeeping services.

22 . Ms. Latham, as Director of Housekeeping, does not

supervise TIDY's housekeepers direc tly. Instead, she interacts

with TIDY's supervisors to ensure that the housekeeping duties

are performed.

23 . One of TIDY's housekeepers was a young female named

April. She began working at Island House Hotel on or about

July 23, 2003.

24 . On Frida y, July 25, 2003, Petitioner grabbed and

jiggled his private parts as he walked down the hall to the

elevator at the Island House Hotel. April, Ms. Latham, and a

porter named Alan Hoffman, were standing at the elevator.

Ms. Latham observed Petitioner's c onduct and considered it

offensive. Ms. Latham could tell that Petitioner's

inappropriate behavior embarrassed April.

25 . On Saturday, July 26, 2003, Ms. Walters was working at

the Island House Hotel when she learned that a young man was at

the front d esk. The young man wanted to speak to Ms. Walters

privately. Therefore, Ms. Walters invited the young man to go

with her to the sales office.

26 . During the conversation, the young man complained to

Ms. Walters that an older gentleman named Ben, who w orked at the

hotel, had made inappropriate gestures to his fianc e é, April.

Specifically, the young man alleged that Ben had grabbed his

private parts and jiggled them in front of April, who was

offended by such behavior.

27 . Ms. Walters talked to Ms. L atham after the young man

left the hotel. Ms. Latham confirmed that she had witnessed

Petitioner grabbing his private parts in front of April.

28 . Immediately after talking to Ms. Latham, Ms. Walters

called Respondent's branch manager, Sherry Moore. M s. Walters

told Ms. Moore that Respondent needed to release Petitioner from

his assignment at Island House Hotel.

29 . Ms. Moore contacted Ms. McDowell by telephone.

Ms. Moore instructed Ms. McDowell to contact Petitioner and

instruct him to report to R espondent's office in Gulfport,

Florida, on July 28, 2003.

30 . On Sunday, July 27, 2003, Ms. McDowell contacted

Petitioner. Ms. McDowell told Petitioner to report to her

office the next day instead of returning to work at Island House

Hotel.

31 . On Monday, July 28, 2003, Petitioner met Ms McDowell

at her office. Ms. McDowell explained that Respondent had

received a sexual harassment complaint involving his behavior.

Petitioner's initial reaction was to state that he had talked to

the little girl an d that she was okay with his apology.

32 . The little girl that Petitioner referred to was not

April. Petitioner's initial statement in Ms. McDowell's office

related to an incident involving a female employee of the

hotel's beach service.

33 . Ms. McD owell informed Petitioner that the complaint

involved a housekeeper. After explaining the allegations

against him, Ms. McDowell relieved Petitioner of his work

assignment at Island House Hotel. Petitioner became angry,

stating as follows: "Well, if Ms. Walters was going down the

hallway and her ass was itching and she scratched it, would you

fire her too?" Ms. McDowell responded that she was dealing only

with a complaint brought against him, where another employee had

witnessed his conduct. Ms. McDowel l did not tell Petitioner

that he was terminated as one of Respondent's temporary

employees.

34 . Respondent's policy requires employees to make

themselves available for work assignments. Employees are

supposed to contact Respondent within 48 hours of t he time that

a work assignment ends if they are available for another job.

Thereafter, employees are required to contact Respondent on a

weekly basis. Petitioner did not follow Respondent's policy in

this regard.

35 . In any event, Ms. McDowell conduct ed a follow - up

investigation. The investigation included interviews with

Ms. Walters, Ms. Latham, and Mr. Hoffman. Ms. McDowell was

unable to talk to April who never returned to work. After

completing her investigation, Ms. McDowell considered

Petitione r's employment terminated.

36 . On or about November 21, 2003, Ms. McDowell requested

that Ms. Latham make a written statement regarding the July 25,

2003, incident. Ms. Latham made the following statement:

April (housekeeper), Alan (porter) and

myself we re standing by the elevator when

Ben Torres came down the hall and grabbed

his privates. Ben might not have realized

April was standing there, he made these

gestures all the time and I told him many

times, that one of these days he will do it

in front of the wrong person and get in

trouble. Most of the housekeepers knew how

he was and just ignored his behavior.

37 . Respondent did not hire another Chief Engineer to

replace Petitioner. Instead, Respondent assigned the duties of

Chief Engineer to Glenn Johnson, the Director of Operations at

the Island House Hotel. Mr. Johnson is a white male.

CONCLUSIONS OF LAW

38 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matte r of this

proceeding. See §§ 120.569, 120 .57(1), and 760.11, Fla. Stat.

39 . It is an unlawful employment practice for an employer

to discriminate against any individual with respect to

compensation, terms, conditions, or privileges of employment,

because of such individual's gender. See § 760.1 0(1)(a), Fla.

Stat.

40 . The provisions of Chapter 760, Florida Statutes, are

analogous to those of the Federal Employment Discrimination Act,

42 U.S.C. Section 2000(e), et seq ., and the cases interpreting

the Federal Employment Discrimination Act are ther efore

applicable to Chapter 760, Florida Statutes. See Razner v.

Wellington Regional Medical Ctr., Inc. , 837 So. 2d 437, 440

(Fla. 4th DCA 2002).

41 . In order to establish a prima facie case of gender

discrimination, an employee must demonstrate the foll owing: (a)

he is a member of a protected class; (b) he is qualified to do

his job; (c) his employer discharged him but did not discharge

similarly situated employees outside of the protected class.

See McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802, 93 S.

Ct. 1817, 36 L. Ed. 2d 668 (1973); Holifield v. Reno , 115 F.3d

1555, 1562 (11th Cir 1997).

42 . If an employee is successful in establishing a prima

facie case, the employer must articulate a legitimate,

nondiscriminatory reason for its actions. Ro jas v. Florida , 285

F.3d 1339, 1342 n.2 (11th Cir. 2002); Combs v. Plantation

Patterns , 106 F.3d 1519, 1526 (11th Cir. 1997).

43 . If the employer satisfies its burden, the employee

must prove that the employer's reason for its action is a

pretext for ille gal discrimination. Texas Dept. of Community

Affairs v. Burdine , 450 U.S. 248, 255 - 256, 101 S. Ct. 1089,

1094 - 1095 , 67 L. Ed. 2d 207 (1981).

44 . As a male, Petitioner was a member of a protected

class. His history of working in maintenance at the Isla nd

House Hotel for many years indicates that he was qualified to

perform his duties as Chief Engineer. Respondent fired

Petitioner, but did not fire female managers (Ms. Walters and

Ms. Latham), who shared jokes of a sexual with Petitioner.

45 . Despite these facts, Petitioner has not met his burden

of proving a prima facie case for two reasons. First, there is

no evidence that Ms. Walters' and Ms. Latham's conduct ever

offended Petitioner or any other co - worker at the hotel.

Second, neither Petitioner nor any other individual ever

complained to Respondent about the behavior of the female

managers. Therefore, it cannot be said that Respondent treated

the female managers in a more favorable way.

46 . Assuming, but not concluding, that Petitioner prove d

his prima facie case, Respondent presented a legitimate and

nondiscriminatory reason for relieving Petitioner of his work

assignment. Respondent's behavior in the presence of other

employees clearly violated Respondent's Harassment - Free

Workplace Policy .

47 . Petitioner failed to present any evidence that the

reason for his termination was a pretext for discrimination.

There could be no gender discrimination where Respondent was

never aware that any female employee's conduct was of the type

that could be considered contrary to the harassment policy.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That FCHR enter a final order dismissing the Petition for

Relief.

DONE AND ENTERED this 6th day of June , 2005 , in

Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCO M 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of June , 2005 .

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee P arkway, Suite 100

Tallahassee, Florida 32301

Debra Dawn Cooper, Esquire

Debra D. Cooper, Attorney

309 West Gregory Street

Pensacola, Florida 3250 2

Jane M. Rolling, Esquire

5301 North Ironwood Road

Post Office Box 2053

Milwaukee, Wisconsin 53217

Ce cil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case .